Thursday, Oct 07 2010
• 1 p.m. (ET)

Resolving a Miscarriage of Justice

A New Orleans man spent eighteen years on death row for a murder he didn’t commit. He was eventually released, and sued the District Attorney’s office, alleging they had surpressed evidence that would have exonerated him. The Supreme Court reviewed his case this week, in what could become a landmark case about municipal responsibility and prosecutorial misconduct.

Guests

Brad Heath
Reporter for USA Today

Ronald Gauthier
Co-author (with John Hollway) of "Killing Time: An 18-year Odyssey from Death Row to Freedom" (Skyhorse Publishing, 2010)

Paul Clement
Attorney; Partner at King & Spalding LLP where he heads the National Appellate Practice; former Solicitor General of the United States (2005-2008)

Transcript

13:06:41

MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. It's a nightmare most of us will never have to face, two decades on death row, wrongfully jailed for a crime you didn't commit, and that is not even the shocking part of the story. The mistakes that caused the miscarriage of justice weren't mistakes at all. The Supreme Court is hearing a case this week dealing with prosecutors who didn't simply bungle a murder case, they fabricated it, hiding crucial evidence that would have freed the accused man.

13:07:21

MR. KOJO NNAMDICases of prosecutorial misconduct have made their way through the courts before, centering on what recourse an individual should have against prosecutors who willfully subvert justice and what kind of responsibility the government has in these cases. The Supreme Court may bring clarity to this ongoing issue. But joining us to talk about it in studio is Brad Heath. He's a reporter for USA Today. He's been working on a series for the paper on prosecutorial misconduct. Brad Heath, thank you very much for joining us.

13:07:52

MR. BRAD HEATHIt's a pleasure to be here.

13:07:53

NNAMDIJoining us from studios in Atlanta, Georgia, is Ron Gauthier. He is co-author with John Hollway of the book, "Killing Time: An 18-year Odyssey from Death Row to Freedom." Ron Gauthier, thank you for joining us.

13:08:08

MR. RONALD GAUTHIERThank you. I'm delighted to be here.

13:08:10

NNAMDIRon, your new book is about the case that's now before the Supreme Court. For listeners who are not familiar with it, can you tell us what happened to John Thompson?

13:08:18

GAUTHIERAbsolutely. In New Orleans, Louisiana, in 1984, Ray Liuzza, a hotel executive was shot and brutally murdered in the city. Subsequently, John Thompson was arrested for the murder, tried in a court of law and sentenced to death. He did 14 years in death row, another four in Orleans Parish Prison and Angola State Penitentiary out in Louisiana. John was lucky to get some lawyers from Philadelphia to do pro-bono work and they decided to take his case.

13:08:52

GAUTHIERThey tried every conceivable appeal possible and failed at every level. When they visited John on death row to tell him the horrible news, that they had exhausted everything and his execution was imminent, a private investigator found some information that turned everything around. And it was blood evidence to prove that John Thompson was not guilty of a carjacking that he had been convicted of by the prosecutor's office.

13:09:20

GAUTHIERThat led to further investigation and they were able to find 13 pieces of evidence that had been withheld, that John Thompson's original lawyers during this criminal trial did not know about. This led to a second trial in which jurors, in less than 35 minutes, acquitted John of first degree murder. And so, he was subsequently released. He eventually filed a lawsuit against the -- a civil lawsuit against the Orleans Parish District Attorney's Office and they successfully won $14 million judgment.

13:09:56

GAUTHIERIt was appealed by the Orleans Parish District Attorney's Office up to the 5th Circuit Court of Appeals. There it was upheld. It was upheld again and now it's been appealed to the United States Supreme Court and the case (sounds like) hit is being argued this week, actually it was argued yesterday.

13:10:15

NNAMDIThe District Attorney's Office was headed by a familiar name, a musician who's the father of a musician, Harry Connick, Sr.

13:10:23

GAUTHIERHarry Connick, Sr., yes. His son is the musician. Harry Connick, Sr. would be...

13:10:27

NNAMDIOh, no. I went to New Orleans once and actually bought a CD by Harry Connick, Sr., believe it or not.

13:10:32

GAUTHIERYeah, he's a musician also. Probably not up to the stature of his son, but he was the district attorney in Orleans Parish for 29 years.

13:10:41

NNAMDICertainly was. Brad Heath, you've been reporting on cases of prosecutorial misconduct for your newspaper. How many cases have come to light in your investigation?

13:10:52

HEATHWell, we've been looking at cases since 1997, which was the year Congress passed a law that was designed to deter some of these abuses. And in the year since, we've documented 201 cases, with the help of a lot of legal experts, and those are cases where judges have overturned convictions, set people free or really rebuked the prosecutors who are involved for misconduct.

13:11:13

NNAMDIWhat kinds of violations were most common?

13:11:17

HEATHThe most common and probably more serious we've found were violations like those in the Thompson case, where prosecutors had evidence that could have helped somebody to prove their innocence or discredit the people who are accusing them of crimes, but they never told the defense attorneys about it. And the Supreme Court said that one of the guarantees of a fair trial that's in the Constitution is that prosecutors have to tell you about that kind of evidence.

13:11:40

NNAMDIHow common is it for a judge to cite a prosecutor for a violation?

13:11:44

HEATHIt's fairly uncommon. I mean, these cases are a small fraction of the tens of thousands that are tried in the federal courts every year. So when it happens, it's really quite extraordinary. We saw that in the trial of former Senator Ted Stevens, where the judge just became phenomenally upset with the way that case was handled.

13:12:03

NNAMDIIf you'd like to join this conversation -- do you think that prosecutors need to be immune from civil lawsuits in order to do their job properly? Call us at 800-433-8850. Or if you work in the criminal justice system, do you think the problem of prosecutorial misconduct is widespread? 800-433-8850. You can send us a tweet at kojoshow, you can send us an e-mail to kojo@wamu.org or you can simply go to our website, kojoshow.org, make a comment or ask a question there.

13:12:33

NNAMDIThe Supreme Court is hearing, this week, the case generated or the case emerging from John Thompson's prosecution, the case of prosecutorial misconduct. What have the courts said up until now in cases like this, Brad?

13:12:47

HEATHWhen cases like -- the Supreme Court has said for about 35 years now that individual prosecutors can't be sued for their work in the courtroom or preparing to take a case to trial. There are a few exceptions to that, sort of when they act as investigators or when they're talking to the media. And it sort of refined that over the years. And the real question here is, can the municipal government, in this case the District Attorney's Office, be sued for not training the prosecutors in a way that would have avoided the violations?

13:13:16

NNAMDIWhat are you looking for to come out of this case, Ron Gauthier?

13:13:20

GAUTHIERWell, first of all, we certainly hope that we are victorious and the Supreme Court will see that this case needs to be settled. What we hope it will do is send a deterrent effect throughout this nation to district attorney's offices to dissuade them from doing these horrible practices. Every district attorney throughout the nation has an obligation to the citizens to ensure the integrity of their office. I think that a lawsuit of this nature, it will send a message resoundingly that they need to train their staff, have the safeguards in place to ensure that we can catch rogue prosecutors and weed them out and ensure that the constitutional rights of every citizen is protected.

13:14:01

NNAMDIBrad, you heard the oral arguments before the Supreme Court yesterday about this case. What happened?

13:14:07

HEATHWell, I think the most interesting thing that happened was the justices seem to focus on the question of what kind of training should these assistant district attorneys have had? I mean, they asked Mr. Thompson's lawyer, Gordon Cooney, directly and several times, you know, if you were in charge of this office, what would you have told them that could have prevented this? And that's a really difficult question to answer. I don't know if that's what the outcome of the case will turn on. It's not a smart bet to bet on these things. But, you know, it's tough to conceive exactly what the training regimen should have been.

13:14:39

NNAMDIIn case you're just joining us, Brad Heath is a reporter for USA Today. He's been working on a series for the paper on prosecutorial misconduct. He joins us in our Washington studio. Joining us from studios in Atlanta, Ga., is Ron Gauthier. He is the co-author with John Hollway of the book "Killing Time: An 18-year Odyssey from Death Row to Freedom," about the story of John Thompson. We move now to Pam in Alexandria, Va. on the phone. Pam, you're on the air. Go ahead, please.

13:15:07

PAMYes. I was calling -- the articles in the paper...

13:15:11

NNAMDIPam, we can't hear you anymore.

13:15:13

PAMHello.

13:15:14

NNAMDIGo right ahead.

13:15:15

PAMI'm sorry. The articles in the paper yesterday about this case talked about conversations that the justices were making, saying that perhaps this was a training issue and that prosecutors need more training. And I certainly think that anybody new to a profession needs additional training beyond school. But it seems to me that it's pretty clear if you've taken any kind of constitutional law class or if you've just been understanding of the criminal justice system, that hiding evidence that can help a person be free or to defend themselves against improper charges is not just a training error. It's an error in judgment. It's an error in a person's ability to do what's right. I don't -- it sort of concerns me that the justices want to make this a training error when it seems to me it's much more a moral area than a training...

13:16:18

NNAMDIWill Pam stay on the line for a second? Because joining us now by telephone is Stephen Kinnaird. He's a partner with the law firm of Paul Hastings and is counsel to the International Municipal Lawyers Association. Stephen Kinnaird, thank you for joining us.

13:16:33

MR. STEPHEN KINNAIRDYou're quite welcome. Glad to be here.

13:16:35

NNAMDIYou submitted a friend-of-the-court brief to the Supreme Court in the case of Connick v. Thompson. Before we talk about the points you made, can you respond to Pam's issue about training, saying that if you've taken courses in constitutional law, there are some things you should know about exculpatory evidence that you don't really need training for. What kind of training does a law school graduate need to go to a prosecutor's office?

13:17:01

KINNAIRDWell, you know, there may very well be a need for training, but I think that's a little different than the issue that the Supreme Court is going to decide. And that's going to be much more a question of municipal liability under very narrow provisions by which municipal corporations can be held liable. So it's not just a matter of whether training is a good idea or, you know, is necessary.

13:17:28

KINNAIRDIt has be shown that the training -- the failure to train actually constituted deliberate indifference to highly likely violations of constitutional rights. And I think the issue here is whether you could really avert the kind of problem you had here by training, given how fact-specific the duties under Brady, that are at issue here to turn over exculpatory (unintelligible) ...

13:17:57

NNAMDII was about to say the first -- the first point to be made in your friend-of-the-court brief was about the rules governing exculpatory material. Are those rules, in your view, not clear enough?

13:18:10

KINNAIRDWell, the rules are stated at a level of generality. For example, the modern rules of professional conduct have a specific rule 3.8 for prosecutors and one provision there does set out the rule that you have take -- you have to make timely disclosure of exculpatory evidence. So the basic preset should be in the arsenal of any prosecutor when they join a prosecutor's office. Now, it is a complicated field and a nuance field.

13:18:42

KINNAIRDAnd the question is, when does the failure to train actually -- when is this a moving force of a violation as opposed to other factors, including a prosecutor's intentional nondisclosure, which is not something that could be averted by training. So there is a clear rule out there. Its application in specific cases can be complicated, but I think the position of the National League of Cities and the Municipal Lawyers Association and others is that this is too case-specific to really be something that can be averted by formalized training.

13:19:23

NNAMDIThe second key point you made was about whether damages could be found in this case. That is, New Orleans should owe Mr. Thompson the $14 million in damages awarded by a lower court. Why not?

13:19:38

KINNAIRDWell, because the statute at issue is one that departs from what we normally think of as a role in municipal corporations, which is that you would be liable for the acts of your employees committed within the scope of your employment. And the Court said, that's not the rule under this statute here. You have to have an actual municipal policy that caused the constitutional violation. And so it's a question of when your deliberate indifference to training requirements effectively is tantamount to a policy that you're going to allow these kind of violations to occur.

13:20:15

KINNAIRDAnd I think the position of the cities is that this is not the kind of constitutional violation that's susceptible to a failure-to-train verdict based on a single incident. And the only one that the Court has recognized, to date, is when you fail to train police officers who are not versed in the law and what constitutes excessive force when they're using weapons. Because you can anticipate that, in a broad run of cases, you're going to have these kind of violations. And I think in the argument that was conducted in front of the Court -- I happened to look at the transcripts this morning -- that seemed to be a lot of the focus of the justices, how could you actually avert these kind of very context-specific violations by some sort of failure to train and therefore, as a legal matter, is the failure to train really what was the cause of the injury here?

13:21:13

NNAMDIBrad Heath, the Supreme Court decided to review a similar case last term. What happened?

13:21:18

HEATHIt settled before the justices could decide it. They actually heard the argument and then the case went away.

13:21:23

NNAMDIWhat case was that?

13:21:24

HEATHThat was a case involving prosecutors in Potawatomi County and I'm afraid I'm not well enough versed in the details to give you all of it. But...

13:21:31

NNAMDIWell, we're going to take a short break. When we come back, we'll continue this conversation. Stephen Kinnaird, thank you very much for joining us.

13:21:37

KINNAIRDYou're quite welcome.

13:21:39

NNAMDIStephen Kinnaird is a partner with Paul Hastings and counsel for the International Municipal Lawyers Association, which filed a friend-of-the-court brief in this case. You can still call us. 800-433-8850. Do you work as a prosecutor? What kind of training did you get? 800-433-8850 or go to our website kojoshow.org and join the conversation there. I'm Kojo Nnamdi.

13:23:40

NNAMDIWe're discussing a case currently before the Supreme Court right now involving Ron Thompson who spent 18 years in jail, 14 of them on death row for a murder he did not commit. Joining us in studio is Brad Heath. He's a reporter for USA Today who's been working on a series for the paper on prosecutorial misconduct. And Ron Gauthier, he is co-author with John Hollway of the book "Killing Time: An 18-year Odyssey from Death Row to Freedom." Ron, why was training of prosecutors a focus in this case?

13:24:13

GAUTHIERWell, I think it's significant for any chief executive officer to ensure that his staff is empowered to do the jobs that they're hired to do. In this particular case, most especially, we saw a violation of the Brady law, which clearly states that prosecutors have a moral and legal responsibility to provide information that's needed for a defense that could help a case. They have to be forthright. They have to be honest and do this.

13:24:40

GAUTHIERIn this particular case, training was lacking. The prosecutors didn't know the Brady law. They didn't know some of the aspects of law to make them do this job right. Then we have some serious problems. In this case, a man wrongfully convicted and who almost lost his life. John Thompson very closely became a casualty of the justice system and we just can't have that happen.

13:24:59

13:25:05

MARILYNYes. Good afternoon, Kojo. I do believe what happened to that gentleman was -- is he African -- he's African American, isn't he?

13:25:16

NNAMDIYes, he is.

13:25:17

MARILYNYeah, it's probably institutionalized racism. Because I had a similar issue, nothing like that. It was just a little domestic squabble. And I went to court for it and the judge threw it out. Ten years later, I was pulled over -- this is Baltimore City -- and arrested. They lied, at first, that I stole the car, which I know that's not true. My car was paid off. Then they later said, oh, well, you have a outstanding warrant for your arrest from an assault. And I was like, I don't have any assault charges. You got the wrong person. Come to find out, it was the same incident from ten years ago that was already dismissed in front of the judge. Then I know that he went in there and somebody reopened the case and (unintelligible) ...

13:26:07

NNAMDIOkay. I'm not following you, Marilyn. What would that have to do with the prosecutors in the case of John Thompson not...

13:26:15

MARILYNOh, I'm sorry, I'm sorry. It was...

13:26:17

NNAMDI...turning over evidence to the defense?

13:26:18

MARILYN...it was just -- I apologize. It was -- well, I was just indicating that they do have a tendency to trump up charges because my particular case was under the state's attorney's office and I was wrongfully prosecuted. I see similarities in that. They do wrongfully trump up charges on innocent African Americans. I think they do.

13:26:40

NNAMDIRon Gauthier, to what extent do you think race played a role in the way this case was prosecuted?

13:26:47

GAUTHIERWell, I tell you, it appeared that in some of the cases in some geographical areas, actually, race may have been a factor. In the case of John Thompson, John was actually on death row with nine other convicted offenders. All of these men had the convictions overturned and they were released. All of these were African American males. But if you look at this in a general sense throughout our nation, I think that this problem afflicts all people of all races who are poor and can't mount an adequate defense. They're usually the ones who could easily be victimized by role prosecutors.

13:27:23

NNAMDIThank you very much for your call, Marilyn. We move on now to Sophie in Washington, D.C. Sophie, you're on the air. Go ahead, please.

13:27:31

SOPHIEHi, Kojo. Thank you for a really interesting program. I have a question, I guess, for Mr. Gauthier. You seem to insist that this is a training problem. I'm not a lawyer, but I happen to know perfectly well that it is illegal to withhold information that can keep an innocent man. So I want to know why you think it was the training program and why did you perhaps interview the prosecutors, what they got out of it? Did someone pay them to do this or did they have some ulterior motive?

13:28:09

NNAMDILet me add to...

13:28:09

SOPHIEWhy is it a training matter?

13:28:10

NNAMDILet me add to that, for both Ron Gauthier and Brad Heath, anybody who's ever seen a cop show, anybody who's watched the movie "My Cousin Vinny," for crying out loud, knows that prosecutors are required to give defense attorneys any evidence that might show the defendant is innocent. Why would that be a training issue, Brad Heath?

13:28:31

HEATHWell, I think there are two answers to that. The really cynical answer is it's a training issue because that's the only way you can sue the prosecutor here. I mean, otherwise, the prosecutor enjoys absolute immunity from civil rights law suits. The less cynical answer is that on the surface, the Brady rule is pretty straight forward. You have to disclose this evidence, but it's really fact specific as to what evidence is actually exculpatory.

13:29:00

HEATHAnd I've talked to, in the course of reporting our series, attorneys and judges who've said, you know, one of the problems we see in prosecutors' offices is they just don't recognize what exculpatory evidence is. And we've actually seen cases where, I mean, it's labeled and it's still not disclosed.

13:29:21

NNAMDIRon Gauthier, there could be, I guess, a wrinkle here that we might not fully understand. Federal prosecutors of federal courts ruled that prosecutors are immune from law suits brought on the basis of the prosecutorial work that is worked after the charges were filed. However, as of now, no rules exempt them from suits for their investigatory acts, fabricating evidence even before formal criminal charges are filed. Is this an issue that the Supreme Court is likely to look at in this situation, Ron Gauthier?

13:29:54

GAUTHIERWell, you know, I'm not sure. I hope that it is. I think we really need to look at it. It's very important. You know, back to your caller earlier...

13:30:04

NNAMDIYes.

13:30:04

GAUTHIER...I'd like to answer her.

13:30:05

NNAMDIPlease do.

13:30:05

GAUTHIERWe said that this issue is primarily just a training issue. No, that's not exactly all it is. It's a combination of things. It's certainly a training issue because, again, any employer, in this case the district attorney of Orleans Parish, has a responsibility to train his staff and empower them to do the job. Secondly, it's a moral issue. The prosecutors who came across this evidence that's preferential to the defense had a moral, legal obligation to submit that to the defense attorneys.

13:30:33

GAUTHIERThey did not do that and that's a bigger picture, but that's not something that makes it easy for a lawyer to sue the district attorney's office. I think the lawyers who represented John Thompson were quite clever and ingenuous in how they went forward with this lawsuit.

13:30:47

NNAMDI800-433-8850 is the number to call. What kind of oversight and training do you think prosecutors need that they may not be getting now? 800-433-8850. Here is Ethan in Oakton, Va. Ethan, you're on the air. Go ahead, please.

13:31:03

ETHANHey there, Kojo. I just wanted to comment on what I think the root cause of this really probably is, is the general kind of corporate culture which has worked its way into the justice system. You know, the focus of, you know, we've got to get these arrests up, we've got to get these prosecutions up. 'Cause there's no other way to really measure a prosecutor's worth, other than looking and saying, oh, this guy's prosecuted so many people. So I think the sort of corruption we're seeing here is just really a basis of these people just trying to get their numbers up. And it's disgusting that our justice system has turned into this sort of heap of nonsense.

13:31:42

NNAMDIGlad you brought that up. Brad Heath, in your pursuing prosecutorial misconduct, to what extent does the pressure on prosecutors to win cases affect the incidence of prosecutorial misconduct?

13:31:56

HEATHIt's clearly part of it. It's hard to parse out exactly how much of it is caused by those constraints. The Justice Department looked, after the Stevens case last year, at what was going on and some of the Brady violations they saw. And they concluded it was largely sort of a resource and training issue, that the people didn't have the time or understanding to deal with these things. And I think we've seen some of that in our own work.

13:32:19

NNAMDIOne article I read said, quoting here, "Prosecutors were the A plus students. They're not used to losing." Is that a factor also?

13:32:30

13:32:39

NNAMDIPeople who graduated near the top of their classes.

13:32:41

HEATHAlmost exclusively, I think. And there is a great deal of pressure on them. And I've spoken to people in U.S. attorney's offices who said there wasn't really pressure on them to win cases from the office. Nobody really got punished for losing cases. But there was pressure on them to stay busy. U.S. attorney's offices get resources from Washington based on how many cases they file and how many cases they investigate so some of them would keep scoreboards on the wall to keep their new assistants busy.

13:33:09

13:33:15

MARYHi. I agree with what that last caller just said. And when I was a prosecutor, numbers were the whole game. Our evaluations were also based upon wins. It wasn't just numbers, but it was how many cases we won. And even though the Supreme Court has said that our duty is to see that justice is done, not win cases, that was -- our evaluations were strictly based upon that.

13:33:39

MARYThe other thing that I have not heard, and that's that we all have to take ethics and we have to take them both for the Bar in law school and most jurisdictions, at least the District, require a separate ethics exam. We have ethics like any other attorney. So in addition to morals, we have an ethical obligation to do the right thing.

13:34:01

NNAMDIAnd that was the point that Ron Gauthier was making earlier. To what extent is it credible that prosecutors in this case may not have known that they had to give exculpatory evidence to the defense, Mary?

13:34:13

MARYAs far as I'm concerned, there's zero validity to that. We all know that. Again, we're under pressure -- we were under pressure. And for those of us who didn't succumb to the pressure, it often resulted in a lot of other things that weren't so pleasant. But we were under enormous pressure to get numbers and to have wins. And sometimes, I've seen attorneys not produce information and be sanctioned by the court for failing to turn over exculpatory evidence, knowing that they had it.

13:34:46

NNAMDIMary, could you tell us and our listeners, in particular, the process by which you became a prosecutor and how you were prepared for that and whether or not the training you got was essentially on-the-job training?

13:34:58

MARYI became a prosecutor, well, simply by applying for a job. And then, I was actually looking to do abuse and neglect work. I was a local prosecutor in the District of Columbia and they needed more people to prosecute drunk driving cases and then juvenile cases. And so that's how I ended up doing that. There was very little training. There was some, but there also was basically almost baptism by fire.

13:35:27

MARYWe were thrown in and given caseloads and often people met with the police officers for their cases the day of trial, first time they interviewed them. Not always, but sometimes there were heavy caseloads, sometimes not so much. They think their crime has been going down and so therefore the caseloads have gone down considerably in the past 20 years.

13:35:53

NNAMDIOkay. Okay.

13:35:55

MARYBut there wasn't a whole lot of training, but, again, the ethics -- there is -- ethics starts in law school. Well, it starts before that, but the ethics training begins in law school.

13:36:06

NNAMDINevertheless -- and thank you very much for your call, Mary -- nevertheless, Ron Gauthier, the situation Mary seemed to describe -- or Mary described is a situation you seem to feel is, at least in part, the responsibility of the municipality. People shouldn't simply be thrown into the fire without adequate preparation.

13:36:24

GAUTHIERAbsolutely, absolutely. And when you think of this -- I want to piggyback on something the last caller just said. You think of the pressure that prosecutors feel to win cases. Bear in mind that this was a really high-profile case in New Orleans. Ray Liuzza came from a very prominent family. He was a hotel executive. So immediately, the prosecutors have this pressure to get this case solved.

13:36:46

GAUTHIERSo the prosecutors who were assigned this particular case, I can imagine how overwhelming that was for them. And at one point -- this doesn't make the excuse to cheat, but sometimes when the pressure is there, I can imagine that they will cheat, withhold evidence, feel that it's not their responsibility to get it to the defense. Their job is to win a case and it's win at all costs. And it's that type of mentality that makes it very dreadful for our justice system.

13:37:11

NNAMDIMary, thank you very much for your call. We'd like to hear from you at 800-433--8850. Would opening the door to lawsuits against prosecutors lead to a flood of cases that could interfere with their work? What do you think? 800-433-8850. Here is Derrick in District Heights, Md. Hi, Derrick.

13:37:31

DERRICKHi, Kojo. I just -- in answer to your last question, I would say if this is the kind of work that they're doing, their work needs to be interrupted. (laugh) I question that this is really a training issue. I mean, I know about Brady requirements just from being a 49-year-old person who watches television. And I have a concern that this discussion is maybe missing the point, if it's held just on the basis of this being a training issue.

13:38:02

NNAMDISo regardless of whether it's a training issue or not, Derrick, you feel that lawsuits should be able to be filed against prosecutors in cases where they violated the law, right?

13:38:14

DERRICKYes, I do.

13:38:15

NNAMDIBrad, what normally happens to prosecutors who violate laws and ethics?

13:38:19

HEATHWell, we found that at least outside the Justice Department not a whole lot. We've looked at state bar records and there are other studies that bear this out as well. And, you know, disbarment is rare, sanctions are rare. The Justice Department has suspended people and has pushed people out the door. And occasionally, you'll see a case like we had here in Washington with the prosecution of Senator Stevens, where the judge actually commissioned his own special counsel to investigate contempt allegations against the federal prosecutors. But there was an interesting study out of the northern...

13:38:52

NNAMDIAnd one of the prosecutors in that case, who was accused of prosecutorial misconduct being investigated, eventually committed suicide.

13:39:01

HEATHThat's true and very sad.

13:39:03

NNAMDIIt is a very sad situation. What kind of oversight are prosecutors subject to?

13:39:07

HEATHThe Justice Department -- well, it can take several forms. The Justice Department has its own internal ethics watchdog called the Office of Professional Responsibility that investigates allegations of misconduct and can take action. State bar associations or lawyer regulatory agencies can also take action. The federal courts can take action. So there are a lot of things that can happen.

13:39:31

HEATHAnd in the most extreme cases, they can actually file criminal charges against somebody. That happened once in Detroit after the first major terrorism case after the September 11th attacks. The Justice Department filed obstruction of justice charges against one of its prosecutors and he was acquitted and then alleged that the people who put him on trial had themselves committed misconduct.

13:39:54

NNAMDIOnto -- and the beat goes on. On to Perry in Washington, D.C. Perry, you're on the air. Go ahead, please.

13:40:01

PERRYAll right. Thank you, Kojo. I wanted to speak to the frequency of lost video and audio in prosecutions. Most cases are not capital cases and so in cases of, say, drug suspects and such, there is a high incidence of Brady violations. I'm one who fought my own case, after firing my lawyer. Fortunately for me, I got back and went to trial, but that evidence still wasn't made available. But I saw so many cases while I was incarcerated fighting, where Brady violations went unpunished. They were recognized in District Court case law...

13:40:45

NNAMDIYou feel...

13:40:46

PERRY...violations (unintelligible) .

13:40:47

NNAMDIPerry, do you feel -- Perry -- Perry, do you feel that a lot of that evidence is conveniently lost? Was there video available in your case? In your view, would it have exonerated you?

13:41:00

PERRYIn my case, yes. I wouldn't have even gotten to a trial stage. My case would have been closed in suppression. And so the issue of training that I hear the expert alluding to, and the court alluding to or addressing, is a veil of sorts. It's a smoke screen. Because these professionals are trained in Brady violations as a specific part or subdiscipline of their expertise, their craft.

13:41:27

NNAMDII don't know. Brad, in your investigations of looking at a series of prosecutorial misconduct, how often is prosecutorial misconduct or allegations of prosecutorial misconduct based on evidence supposedly lost or misplaced?

13:41:43

HEATHWe've seen a few cases of that and we've seen a few cases where that seems to be actually what happened. You know, police evidence rooms are a whole different issue from the prosecutor's office. It can happen. But there was an interesting bit in John Thompson's case, too, where not only was the police lab report never disclosed to his attorneys, but one of the prosecutors checked the actual bloody evidence out of the evidence room and never checked it back in.

13:42:10

NNAMDIRon Gauthier?

13:42:12

GAUTHIERYes, absolutely. And, you know, bear in mind, especially in the John Thompson case, you had so much more evidence that had not been disclosed. You had a case of witnesses who actually saw the murderer and described him as 6'2", close-cropped haircut. John Thompson was clearly 5'7", large afro. You had other information like that that hadn't disclosed. So it does happen often.

13:42:34

GAUTHIERBut let me give you an idea of how widespread this is in a general sense. The Center for Public Integrity out of Washington D.C. comprised a study that was released. It took three years to comprise this study and it covered prosecutorial misconduct in this country from 1973 to about 2003, three decades. The study clearly showed that of all of the cases they looked at, 2,017 of those were cases that were appealed because of prosecutorial misconduct.

13:43:02

GAUTHIERNow, bear in mind, that's a very conservative number at best because the study did not consider any of the federal cases, they did not look at cases that were settled out of court. They certainly couldn't look at cases where, uh, someone may have been released prior to going to trial. That's 2,017 cases and it's prosecutorial misconduct in various areas. Cases where prosecutors struck jurors based on race, ethnicity, gender and so on and so forth.

13:43:27

GAUTHIERCases where prosecutors actually withheld destroyed evidence, cases where they manufactured statements that witnesses supposedly made. So it is widespread. And the media has done, to our comfort level, a lot of exposés on prosecutorial misconduct. What Heath has done with the USA Today is extraordinary, and Chicago Tribune did an amazing five-series special report on prosecutorial misconduct back in 1998. So it's really eye-opening and it's really unfortunate that it's just so widespread.

13:44:00

NNAMDIPerry, thank you very much for your call. We're going to take another short break. If you have called, stay on the line, we'll try to get to your call. We still have lines open, 800-433-8850, or go to our website, kojoshow.org and join the conversation there. I'm Kojo Nnamdi.

13:45:57

NNAMDIWe're talking about a case currently before the Supreme Court involving John Thompson who was in prison for 18 years and on death row for 14 for a murder he didn't commit as a result of prosecutors withholding evidence from the defense. Joining us to talk about is Ron Gauthier. He is co-author with John Hollway of the book, "Killing Time: An 18 Year Odyssey from Death Row to Freedom," and Brad Heath. Brad is a reporter for USA Today who's been working on a series for the paper on prosecutorial misconduct.

13:46:27

NNAMDIAnd Brad, one of the reasons why training is such a big issue is because in some circumstances, the prosecutors and the municipality would otherwise be immune.

13:46:39

HEATHThat's right. If this wasn't a training allegation, there really wouldn't be a lawsuit here.

13:46:44

NNAMDIAnd joining us now by telephone is Paul Clement. He's a partner at the law firm King & Spalding where he heads the National Appellate Practice. He's also the former solicitor general of the United States under President George W. Bush. Paul Clement, thank you for joining us.

13:46:58

MR. PAUL CLEMENTMy pleasure to be here.

13:47:00

NNAMDIWhy did you ask to testify before the Supreme Court in the Thompson case?

13:47:04

CLEMENTWell, we filed a brief in this case on behalf of a bipartisan coalition of former Justice Department officials. And we thought it was important to try to get the court to understand that although the Justice Department did not file a brief in this case, that certainly a bipartisan coalition of former Justice Department officials had the belief that there were important interests at stake here. And that based on the experience of the federal government, which does provide extensive Brady training to its prosecutors, that that federal perspective on this case should have been shared with the court.

13:47:41

NNAMDIYour request was denied, but I guess that was not surprising. You would have been expected to be on the prosecutorial side of this case. Why was your request denied?

13:47:53

CLEMENTWell, you know, the court does routinely deny requests for divided oral argument when they're made by private parties and not the government. So it wasn't a surprise that they denied the request. We did, of course, file a brief with the court so the court did have the benefit of the views of this group. And, you know, obviously, it would have been even better, I think, if they could have had those views yesterday at the oral argument.

13:48:18

CLEMENTBut I do hope the brief had an impact on the court's deliberation because I think the brief demonstrates that this is not a partisan issue. This is an issue where even former prosecutors understand the importance of Brady and the importance of training in avoiding Brady violations.

13:48:37

NNAMDISo you weigh in on the side of John Thompson and his attorneys in this situation?

13:48:44

CLEMENTThat's exactly right. That's exactly right. And of course, both Mr. Thompson and his attorneys wanted us to have time at the argument. So it wasn’t like we were sort of an uninvited interloper here. I think, you know, they understand that having the voice of these former prosecutors supporting their positions would help. And as I say, you know, it's not a great surprise the court denied the motion, but they did have the benefit of the brief. And I do think that, you know, hopefully it will make an impact at the end of the day that this coalition of former prosecutors was supporting Mr. Thompson.

13:49:20

NNAMDIWhat do you see as the main issue in this case, Paul Clement?

13:49:24

CLEMENTWell, I see the main issue in this case -- I guess, legally, it's the issue about the failure to train and whether you can have a failure to train violation in the absence of prior Brady violations. But taking a step back and getting away from just the legal specifics, I think the question in this case is really whether you have any remedy whatsoever when a prosecutor commits an egregious Brady violation and suppresses evidence that goes to the defendant's guilt or innocence. In this case, innocence.

13:50:01

CLEMENTAnd I think, you know, you have to understand, in this case, the background, that there is absolute prosecutorial immunity. So it's just not possible to sue the prosecutor who directly suppressed the evidence. And so the question becomes is there any way to get compensation for the consequences of this kind of egregious Brady violation. And if the court says that this failure to train claim cannot proceed, then effectively they're saying that in the most kind of normal -- kind of even the most egregious Brady violation, that there's really no remedy at all.

13:50:36

NNAMDIYou can't sue the prosecutor, you can't sue the municipality. If the Supreme Court, in fact, rejects this, what message does that send to prosecutors around the country?

13:50:48

CLEMENTWell, it certainly tells prosecutors that they don't have to worry about civil consequences of a Brady violation and it's just not clear to me that that's the message we want to send to prosecutors. Prosecutors -- most prosecutors care very much about Brady and don't want to make a Brady violation. And don't want to make a Brady violation because it's the wrong thing to do and it might jeopardize the criminal conviction.

13:51:13

CLEMENTBut that said, you know, we always -- almost every other Constitutional provision that you can imagine, we back up the basic incentives that we think public officials are going to comply with the Constitution with the additional incentives of Section 1983 and compensation to the injured. And that's the way the system works. And, you know, there's not a word in Section 1983, which is one of the great civil rights statutes in this country, there's not a word that suggests that prosecutors should be completely immune.

13:51:45

CLEMENTAll of that is a judge-made gloss on the statute. And so the question really is, you know, why, in this one area, do we not want to back up the normal incentives to behave with the additional incentive that comes with the possibility of civil liability in a particularly egregious situation.

13:52:02

NNAMDIPaul Clement, thank you for joining us.

13:52:04

CLEMENTMy pleasure, thank you.

13:52:04

NNAMDIPaul Clement is a partner at the law firm King and Spalding where he heads the National Appellate Practice. He's also the former solicitor general of the United States under President George W. Bush. Brad Heath, a judge in Massachusetts, you've written about Judge Wolf, has initiated a training program for prosecutors. Tell us about Judge Wolf and about the training program. What do you think it could do?

13:52:24

HEATHWell, Judge Wolf is a federal district court judge sitting in Boston and he was hearing a fairly routine gun possession case. And he happened to find out, during it, that one of the assistant U.S. attorneys who was handling it had failed to turn over some evidence to the defendant like she was supposed to. And this was sort of the straw that broke the camel's back for him. He had seen a series of these, including some in some fairly high profile mob cases, and he just got upset. And he summoned in the U.S. attorney and he said, I'm going to make every federal prosecutor in Massachusetts go to this training.

13:52:57

HEATHIt turns out he couldn't actually make them go, but he did set up a workshop where they brought in law professors and they actually sat down assistant U.S. attorneys, defense attorneys, and even federal investigators, because they have a role in this, too, and sort of walked them through. And we've seen the DVD of that workshop. I mean, it is -- the factual hypotheticals that they were able to come up with and ask this panel about, you know, what do I do under these sets of circumstances, they get pretty detailed. And the answers aren't always as obvious as you think they might be.

13:53:29

13:53:33

DAVEYes. I just have a comment. I think that those prosecutors, indeed they have hurt and harmed the wrongfully accused, but they've hurt society as well. While they have wasted resources and efforts prosecuting an innocent man, the person who committed the crime is out doing it all over again. They have inflicted the community with violence because they didn’t have, I don't know, the integrity or the understanding that they need to protect society rather than win a case.

13:54:02

NNAMDIRon Gauthier, was the perpetrator of the crime that John Thompson was accused of committing ever arrested?

13:54:10

GAUTHIERThe perpetrator of that crime, we think, definitely was never arrested. And here's the horror to it. The perpetrator, we think, was someone who testified against John Thompson and was awarded $15,000. The only consolation I could give the community is that we think that same person who committed this crime committed an armed robbery of an off-duty security officer in 2003, and was subsequently killed.

13:54:34

NNAMDIWhy was he given $15,000?

13:54:37

GAUTHIERHe testified against John Thompson. The claim was that he actually knew of the murder. What's so amazing is, that information that he awarded this amount of money, that information was never presented to John Thompson's defense attorney during the first trial. So it was more information withheld, which was part of the prosecutorial misconduct.

13:54:57

NNAMDIDave, thank..

13:54:57

GAUTHIERAnd let...

13:54:58

NNAMDIGo ahead, please.

13:54:58

GAUTHIER...let me add, piggybacking onto what the last caller just said, what has happened here is devastating to the general society at large. When you consider the fact that an innocent man was railroaded, isolated in a place that exacted a social debt, more terrifying than a physical one, we still have to look at the fact that here's a family, the Liuzza family, who have deal with the horror that the murderer of their son was not caught -- was not sentenced.

13:55:24

GAUTHIERWe have to deal with the general community of all of us taxpayers who have to deal with the spiraling costs of cases being retried, a judgment that may be awarded that the local government has to pay. So we get saddled with that somehow. It is. It's a tragedy for the general community in so many ways.

13:55:44

NNAMDIYeah. Because if the municipality has to pay, that's coming out of the taxpayers' pockets.

13:55:49

GAUTHIERI bet you they will saddle us with that without a doubt.

13:55:51

NNAMDIBrad, in one case you've written about in Florida, it was luck that brought about the evidence. Tell us about the case of Nino Lyons.

13:55:57

HEATHWell, sure. Nino Lyons was a businessman in Coco, Florida, which is outside of Orlando on the space coast. And in 2000, the police searched his house looking for drugs and a machine gun. The next year, he was put on trial. About 25, 26 witnesses testified against him. They were all federal inmates. They all said, at one point or another, he sold cocaine to me. They never had any corroboration. They never found any drugs. They had put a pen register on his phone to sort of figure out what numbers he was calling.

13:56:28

HEATHThey never found anything there, either. And it got all the way to the point of -- a jury found him guilty of almost everything. And it got to the point of sentencing -- and before you're sentenced, there's a federal probation officer who will put together this long biographical report on who you are and what you've done so the Judge can figure out how long you should be in jail And there was just one line in there that jumped out to Nino Lyons' attorney.

13:56:54

HEATHIt was an account of the testimony of one of the guys who had testified against him and it -- the account in that report was slightly different from what this guy had said during the trial. And that really did open the floodgates. Because over the next three years, they found hundreds of pages of undisclosed evidence that really would have undermined the credibility of a lot of the people who had accused him of being a drug trafficker.

13:57:18

NNAMDIMost of them were lying. Four years later -- he was put in jail in 2000. Four years later, he was freed and the charges thrown out, but by then he'd lost everything.

13:57:28

HEATHHe lost his businesses. His wife was demoted from her job. He -- I think that part that grabbed me the most was, you know, he was in the Seminole County Jail in Florida, and for three years he wasn't able to touch his kids.

13:57:43

NNAMDIBrad Heath is a reporter for USA Today. He's been working on a series for the paper on prosecutorial misconduct. Brad, thank you very much for joining us.

13:57:49

HEATHIt's been a pleasure.

13:57:50

NNAMDIRon Gauthier is the co-author with John Hollway of the book, "Killing Time: An 18-year Odyssey from Death Row to Freedom." Ron Gauthier, thank you for joining us.

13:57:59

GAUTHIERThank you for having me.

13:57:59

NNAMDI"The Kojo Nnamdi Show" is produced by Diane Vogel, Brendan Sweeney, Tara Boyle, Michael Martinez, and Ingalisa Schrobsdorff. Diane Vogel is the managing producer. The engineer today, Timmy Olmstead. Dorie Anisman has been on the phones. Thank you all for listening. I'm Kojo Nnamdi.

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